Vincent Fried v. Wynn Las Vegas, LLC ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINCENT FRIED, No. 20-15710
Plaintiff-Appellant,
D.C. No.
v. 2:18-cv-00689-APG-BNW
WYNN LAS VEGAS, LLC,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted May 5, 2021
Seattle, Washington
Filed November 18, 2021
Before: Morgan Christen and Mark J. Bennett, Circuit
Judges, and Roslyn O. Silver,* District Judge.
Opinion by Judge Christen
*
The Honorable Roslyn O. Silver, Senior United States District Judge
for the District of Arizona, sitting by designation.
2 FRIED V. WYNN LAW VEGAS
SUMMARY**
Employment Discrimination
The panel reversed the district court’s summary judgment
against Vincent Fried on his claim for hostile work
environment in violation of Title VII, and remanded.
The panel concluded that a reasonable factfinder could
decide that Fried’s employer Wynn Las Vegas created a
hostile work environment at the salon where he worked as a
manicurist. To establish that he was subjected to a hostile
work environment, Fried was required to prove that: (1) he
was subjected to verbal or physical conduct of a sexual
nature; (2) the conduct was unwelcome; and (3) the conduct
was sufficiently severe or pervasive to alter the conditions of
employment and create an abusive working environment.
The panel held that it is well established that an employer can
create a hostile work environment by failing to take
immediate and corrective action in response to a coworker’s
or third party’s sexual harassment or racial discrimination
that the employer knew or should have known about. To
determine whether an environment is sufficiently hostile or
abusive to violate Title VII, a court must consider all the
circumstances, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work
performance.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FRIED V. WYNN LAW VEGAS 3
The panel agreed with the district court that comments
made by a manager and coworkers on two occasions were
insufficiently severe or pervasive to support a hostile work
environment claim. The panel held, however, that an
employer’s response to a third party’s unwelcome sexual
advances toward an employee can independently create a
hostile work environment. Here, the manager’s response to
Fried’s report that a customer had sexually propositioned him
should have prevented entry of summary judgment in Wynn’s
favor because the manager not only failed to take immediate
corrective action, but also directed Fried to return to the
customer and complete his pedicure. The panel also reversed
the district court’s ruling that coworkers’ breakroom
comments on the customer’s sexual proposition were
insufficiently severe or pervasive to support Fried’s claim.
The panel instructed the district court on remand to
reconsider the cumulative effect of the coworkers’ comments.
COUNSEL
Michael P. Balaban (argued), Law Offices of Michael P.
Balaban, Las Vegas, Nevada, for Plaintiff-Appellant.
Jen J. Sarafina (argued) and Dare E. Heisterman, Kamer
Zucker Abbott, Las Vegas, Nevada, for Defendant-Appellee.
4 FRIED V. WYNN LAW VEGAS
OPINION
CHRISTEN, Circuit Judge:
Vincent Fried appeals the district court’s order granting
summary judgment to Wynn Las Vegas (Wynn) on Fried’s
claim for hostile work environment in violation of Title VII
of the Civil Rights Act of 1964.1 Because a reasonable
factfinder could decide that Fried’s employer created a hostile
work environment, we reverse the district court’s judgment
and remand.
I
Fried worked as a manicurist at a salon in the Wynn Hotel
in Las Vegas, Nevada, from April 2005 to July 2017. His
performance reviews show that he met or exceeded
expectations, and Fried received eight certificates of merit
based on positive comments from guests, extraordinary
performance, or otherwise “going above and beyond.”
Fried alleges that he complained to management about
female manicurists receiving most of the appointments, and
that other male manicurists complained about this as well.2
Though appointments were generally allocated to manicurists
based on a system Fried designed to balance the assignments,
1
Fried also appeals the district court’s order granting summary
judgment to Wynn on his claims for sex discrimination and retaliation
pursuant to Title VII. We affirm the dismissal of those claims in a
concurrently filed memorandum disposition.
2
At the summary judgment stage, we view the facts in the light most
favorable to Fried. See Ellison v. Brady, 924 F.2d 872, 873 (9th Cir.
1991).
FRIED V. WYNN LAW VEGAS 5
Fried testified that his female coworkers received more
appointments, due in part to customers specifically requesting
female manicurists.
On one occasion in March 2017, Fried became frustrated
and threw a pencil at a computer because customers were
requesting female manicurists more often than male
manicurists. Fried alleges that a manager at the salon, Sarah
Barajas, disciplined him for throwing the pencil and
commented that he might want to do something else for work.
According to Fried, Barajas remarked that Fried was working
in a “female job related environment” and suggested that he
look for other employment in the culinary field. On another
occasion a female coworker told Fried and another male
manicurist that if they wanted to get more clients, they should
wear wigs to look like women. Fried alleges that his
coworkers made similar comments to him on other occasions,
and his male coworkers agreed that they were subjected to
similar remarks.
In June 2017, a male customer came into the salon for a
pedicure and Fried was assigned to provide the service. The
customer asked Fried to give him a massage in the customer’s
hotel room and said he had massage oil. When Fried
responded, “we don’t do that kind of service,” the customer
made an explicit sexual proposition, asking if Fried wanted to
have sex and “rub[] [the customer’s] penis.” The customer
told Fried “it [is] wonderful to have sex with another man.”
Fried immediately went to the salon’s front desk, reported
the customer’s conduct to Barajas, and stated that he no
longer felt comfortable interacting with the customer.
According to Fried, Barajas directed him to “just go [finish
the pedicure] and get it over with.” Fried complied, but
6 FRIED V. WYNN LAW VEGAS
testified that he felt “absolutely horrible” and
“uncomfortable” during the twenty or so minutes it took to
finish the customer’s pedicure. In total, the customer made
five or six inappropriate sexual references to Fried during the
thirty-five- to forty-five-minute pedicure, and grabbed or held
Fried’s hand or arm for about a minute when Fried escorted
the customer out of the salon after completing the pedicure.
The customer did not otherwise touch Fried.
Fried confronted Barajas after the customer left and told
her that they needed to discuss what had happened. Barajas
responded that she was busy dealing with emails but would
talk to him “when she got a chance.” When Fried followed
up later that day, Barajas again told him that she had a lot of
emails to review and asked to discuss the incident another
time. Fried told Barajas that he would report the incident to
the hotel’s human resources department, but he did not do so,
and there is no evidence that Fried and Barajas ever discussed
the incident again.
About one week later, Fried was in the salon’s breakroom
and asked his coworkers whether Barajas was on duty
because he still wanted to speak with her about the customer
who had propositioned him. A female coworker told Fried he
should not be upset about the incident and should instead take
it as a compliment. When Fried responded that he was not
happy with that remark, another female coworker allegedly
said, “shut up Vincent, you know you want sex from [the
customer], you keep mentioning it.”
On April 16, 2018, Fried filed suit against Wynn in the
United States District Court for the District of Nevada. His
complaint included claims pursuant to Title VII, 42 U.S.C.
§ 2000e et seq., for sex discrimination, retaliation, and hostile
FRIED V. WYNN LAW VEGAS 7
work environment. Wynn moved for summary judgment, and
the court dismissed Fried’s claims and entered final judgment
in Wynn’s favor. Fried timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the
dismissal of Fried’s sex-discrimination and retaliation claims
in a concurrently filed memorandum disposition, but we
reverse the dismissal of Fried’s hostile work environment
claim.
II
We review de novo the district court’s order granting
summary judgment. Branch Banking & Tr. Co. v. D.M.S.I.,
LLC, 871 F.3d 751, 759 (9th Cir. 2017). We view the
evidence in the light most favorable to Fried and determine
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant
substantive law. See Olsen v. Idaho State Bd. of Med.,
363 F.3d 916, 922 (9th Cir. 2004). Whether Fried was
subjected to a hostile work environment and Wynn is liable
for creating a hostile work environment are mixed questions
of law and fact that we review de novo. See Little v.
Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir.
2002).
III
Fried argues four incidents at the salon created a hostile
work environment in violation of Title VII: (1) Barajas’s
suggestion that he seek employment in a field that is not a
predominantly female environment; (2) his coworkers’
suggestions that he should wear a wig; (3) Barajas’s response
to his report that a customer had sexually propositioned him;
and (4) Fried’s coworkers’ comments that he should take the
8 FRIED V. WYNN LAW VEGAS
customer’s proposition as a compliment and that Fried
actually wanted to have sex with the customer.
Title VII of the Civil Rights Act of 1964 prohibits sex
discrimination, including sexual harassment, in employment.
42 U.S.C. § 2000e-2(a)(1); Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 65–66 (1986). To succeed on his Title VII claim
for hostile work environment, Fried was required to establish
that: (1) he was subjected to a hostile work environment; and
(2) Wynn was liable for the harassment that caused the hostile
environment to exist. See Freitag v. Ayers, 468 F.3d 528, 539
(9th Cir. 2006). Because the district court granted summary
judgment to Wynn based solely on the first prong of the
claim, we limit our review to whether Fried was subjected to
a hostile work environment. To establish he was subjected to
a hostile work environment, Fried was required to prove that:
(1) he was subjected to verbal or physical conduct of a sexual
nature; (2) the conduct was unwelcome; and (3) the conduct
was sufficiently severe or pervasive to alter the conditions of
employment and create an abusive working environment. See
Little, 301 F.3d at 966.
The Supreme Court has held an employer is liable
pursuant to Title VII only for “its own” acts, Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998); see also
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998),
but it is well established that an employer can create a hostile
work environment by failing to take immediate and corrective
action in response to a coworker’s or third party’s sexual
harassment or racial discrimination the employer knew or
should have known about. All federal circuits are in accord
on this point. See, e.g., Howard v. Cook Cnty. Sheriff’s Off.,
989 F.3d 587, 607 (7th Cir. 2021); Roy v. Correct Care Sols.,
LLC, 914 F.3d 52, 57 (1st Cir. 2019); Vasquez v. Empress
FRIED V. WYNN LAW VEGAS 9
Ambulance Serv., Inc., 835 F.3d 267, 273–74 (2d Cir. 2016);
Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir.
2014); Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651
(5th Cir. 2012); Malone v. Ameren UE, 646 F.3d 512, 517
(8th Cir. 2011); Beckford v. Dep’t of Corr., 605 F.3d 951,
957–58 (11th Cir. 2010); Huston v. Procter & Gamble Paper
Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009); Tademy v.
Union Pac. Corp., 614 F.3d 1132, 1139 (10th Cir. 2008);
Curry v. District of Columbia, 195 F.3d 654, 660 (D.C. Cir.
1999) (per curiam); Hafford v. Seidner, 183 F.3d 506, 513
(6th Cir. 1999); Folkerson v. Circus Circus Enters., Inc.,
107 F.3d 754, 756 (9th Cir. 1997); see also 29 C.F.R.
§ 1604.11(e) (providing that employers may be liable for
sexual harassment perpetrated by nonemployees “in the
workplace, where the employer . . . knows or should have
known of the conduct and fails to take immediate and
appropriate corrective action”).
To determine whether an environment is sufficiently
hostile or abusive to violate Tile VII, we consider “all the
circumstances, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work
performance.” Christian v. Umpqua Bank, 984 F.3d 801, 809
(9th Cir. 2020) (internal quotation marks omitted) (quoting
Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir.
2008)). “Not every insult or harassing comment will
constitute a hostile work environment.” Ray v. Henderson,
217 F.3d 1234, 1245 (9th Cir. 2000). The standard for
judging hostility is meant to “ensure that Title VII does not
become a ‘general civility code.’” Faragher, 524 U.S. at 788(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 80 (1998)).
10 FRIED V. WYNN LAW VEGAS
The Supreme Court has explained that, properly applied,
this standard “will filter out complaints attacking the ordinary
tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional
teasing.” Id. (internal quotation marks omitted) (quoting B.
LINDEMANN & D. KADUE, SEXUAL HARASSMENT IN
EMPLOYMENT LAW 175 (1992)). A hostile work environment
“must be both objectively and subjectively offensive, one that
a reasonable person would find hostile or abusive, and one
that the victim in fact did perceive to be so.” Id. at 787.
A single incident of harassment “can support a claim of
hostile work environment because the frequency of the
discriminatory conduct is only one factor in the analysis,”
Little v. Windermere Relocation, Inc., 301 F.3d 958, 967 (9th
Cir. 2002) (internal quotation marks omitted), but for a single
incident to suffice, it “must be extremely severe,” Brooks v.
City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000); see
also Little, 301 F.3d at 967 (collecting cases). When severity
is questionable, “it is more appropriate to leave the
assessment to the fact-finder than for the court to decide the
case on summary judgment.” Davis, 520 F.3d at 1096.
A
Fried first argues that Barajas created a hostile work
environment by commenting that he should consider finding
a job in which the clientele is not mostly female.3 Fried
3
We serially discuss whether the incidents Fried alleges created a
hostile work environment because: (1) Fried presents the four incidents in
this manner in his briefing; and (2) the incidents are different in kind or
severity. However, the cumulative effect of the four incidents determines
whether a hostile work environment existed. See Christian, 984 F.3d
FRIED V. WYNN LAW VEGAS 11
alleges that Barajas told him on one occasion he was “in a
female job related environment,” suggested he “look for other
employment in cooking in the future,” and said he “might
want to do something with cooking for work.” Fried also
argues his coworkers created a hostile work environment by
remarking that he and another male manicurist should wear
wigs if they wanted to get more clients or make more money
at the salon. Fried identified only two specific occasions,
about a month apart, on which his coworkers made these
comments. The district court ruled these statements were
insufficiently severe or pervasive to support a hostile work
environment claim. We agree with the district court.
The required severity for “harassing conduct varies
inversely with the pervasiveness or frequency of the
conduct.” Id. (quoting Ellison v. Brady, 924 F.2d 872, 878
(9th Cir. 1991)). Because Fried testified that Barajas made
her comments on one occasion and his coworkers suggested
on two occasions that he should wear a wig to look like a
woman, the comments would have to be proportionately more
severe to make up for their relative infrequency. See id. The
comments here fall far short of that mark. Indeed, we have
deemed much harsher comments and actions insufficient to
create a hostile work environment.
In Kortan v. California Youth Authority, 217 F.3d 1104(9th Cir. 2000), a female employee brought a hostile work
environment claim based on her supervisor’s misogynistic
comments. Id. at 1106–08. The supervisor referred to an
employee as a “regina” and said that the employee “laughs
like a hyena.” Id. at 1107. The same supervisor referred to
another employee as a “madonna,” a “regina,” and a
at 809–10.
12 FRIED V. WYNN LAW VEGAS
“castrating bitch,” and to women generally as “bitches” and
“histrionics.” Id. We held that these crass and denigrating
comments were not severe enough to create a hostile work
environment, in part because the comments were
concentrated on one occasion. See id. at 1110–11.
Almost three years later, in Manatt v. Bank of America,
NA, 339 F.3d 792 (9th Cir. 2003), we considered a female
Chinese-American employee’s hostile work environment
claim based on coworkers’ patently offensive racial
comments and acts. Id. at 794–95. On one occasion, Manatt
overheard her coworkers laughing and saying “China Man”
and saw them pulling “their eyes back with their fingers in an
attempt to imitate or mock the appearance of Asians.” Id.
at 795. On a different day, one of Manatt’s coworkers
ridiculed her for mispronouncing the word “Lima” and
referred to her as “China woman.” Id. Though
unquestionably offensive and insensitive, we held that these
gestures and comments did not create an actionable hostile
work environment. Id. at 798–99; see also, e.g., Vasquez v.
County of Los Angeles, 349 F.3d 634, 643–44 (9th Cir. 2003)
(holding a coworker’s isolated remarks, six months apart, that
an employee had “a typical Hispanic macho attitude” and
“should consider transferring to the field because ‘Hispanics
do good in the field’” were not severe enough to create a
hostile work environment).
The objective severity of Barajas’s comments about
looking for a job outside of a female-oriented field pale in
comparison to the statements and conduct in Kortan, Manatt,
and Vasquez. Those cases involved either sexually or racially
motivated derogatory language; Barajas’s comments did not
directly pertain to Fried’s sex or race. The context in which
the comments were made is also important because Fried has
FRIED V. WYNN LAW VEGAS 13
a degree in culinary arts, and Fried’s coworkers testified that
it was well known his dream job was to own a food truck.
Especially when viewed against that backdrop, Barajas’s
comments suggesting that Fried “might want to [consider
doing] something with cooking for work,” clearly do not
support a claim of hostile work environment. Fried’s
coworkers’ banter regarding wearing wigs is also insufficient.
Even viewed cumulatively, this is the type of infrequent
joking or teasing we have held to be part of the ordinary
tribulations of the workplace. See EEOC v. Prospect Airport
Servs., Inc., 621 F.3d 991, 998 (9th Cir. 2010)
(acknowledging sporadic gender-related jokes or occasional
teasing do not support a hostile work environment claim).
B
The third episode is much more compelling. Fried alleges
that Barajas responded to his report that a male customer had
sexually propositioned him by directing him to return to the
customer and complete the pedicure service. Fried is clear
that he does not seek to hold Wynn vicariously liable for the
male customer’s conduct. Rather, Fried alleges that his
manager’s response, after learning about the male customer’s
conduct, independently created a hostile work environment.
The district court ruled that this episode was insufficient to
support a hostile work environment claim because “Fried was
not touched physically, other than a brief touch on the arm,”
he was not alone with the customer, and he was able to
complete the customer’s pedicure.
Several circuit courts, including our own, have recognized
that an employer’s response to a third party’s unwelcome
sexual advances toward an employee can independently
create a hostile work environment. Thus, the district court
14 FRIED V. WYNN LAW VEGAS
erred when it focused on the customer’s conduct; Fried’s
claim is premised on Wynn’s response to the customer’s
harassment.
We explained in Brooks v. City of San Mateo, 229 F.3d
917 (9th Cir. 2000), that an employer’s prompt corrective
response can insulate an employer from liability for an
employee’s hostile work environment claim. Brooks reported
to her employer that a coworker “forced his hand underneath
her sweater” and fondled her breast. Id. at 921. The
employer put the coworker on administrative leave the next
day, began an investigation, and later initiated termination
proceedings that led to the coworker’s resignation. Id.at 921–22. We made clear that while the coworker’s
egregious conduct was relevant, the proper focus for the
hostile work environment claim was the employer’s response
to the coworker’s conduct. Id. at 924. Because the employer
took corrective action right away, we held the employer in
Brooks was not liable for subjecting the employee to a hostile
work environment. See id. at 925–26.
In contrast to the employer in Brooks, the employer in
Little v. Windermere Relocation, Inc., 301 F.3d 958 (9th Cir.
2002), not only failed to intervene after learning of harassing
conduct, but also responded in ways that exacerbated the
hostile work environment. In the process of conducting
contract relocation work for Starbucks, Little learned that
Starbucks was dissatisfied with its primary relocation
provider, and she mentioned this to Windermere’s president.
See id. at 964. The president allegedly said he would “do
whatever it t[ook] to get th[e] account,” and encouraged Little
to “do the best job she could.” Id. Little later accepted a
dinner invitation from a Starbucks representative to discuss
the account, but she began to feel ill after the meal and passed
FRIED V. WYNN LAW VEGAS 15
out. Id. When she awoke, she found herself being sexually
assaulted by the Starbucks representative. Id.A management-level employee advised Little “not to tell
anyone in management” about the assault. Id. And the
person designated in Windermere’s harassment policy as a
“complaint-receiving manager” told Little to “try to put [the
assault] behind her” and to stop working on the Starbucks
account. Id. at 965. But Windermere’s president continued
to ask Little if she was making progress on the account. Id.Little eventually told the president about the assault, and his
“immediate response was that he did not want to hear
anything about it.” Id. He told Little she would have to
speak to his lawyer, immediately cut her base pay from
$3,000 per month to $2,000 per month, and within a few days
terminated Little’s employment. Id. Little filed suit, alleging
that Windermere’s reaction to her report created a hostile
work environment, but the district court entered summary
judgment in favor of Windermere. Id. at 965–66.
On appeal, we held that a reasonable jury could agree
with Little because Windermere failed to take immediate and
effective remedial action, because Little was not relieved of
responsibility for the Starbucks account, and because Little
was warned she might suffer an adverse employment action
if she reported the abuse. Id. at 967. We concluded that
Windermere’s “actions reinforced rather than remediated” the
sexual assault and allowed the sexual assault’s effects to
permeate Little’s work environment and alter it irrevocably.
Id.The Tenth Circuit has recognized that an employer’s
response to a customer’s offensive conduct can create a
hostile work environment where the response subjects an
16 FRIED V. WYNN LAW VEGAS
employee to further abuse. In Lockard v. Pizza Hut, Inc.,
162 F.3d 1062 (10th Cir. 1998), Lockard, a waitress,
informed her manager that she did not like waiting on two
particular customers. Id. at 1067. When the customers
returned to the restaurant, the manager told Lockard to wait
on them anyway, and one of the customers took the
opportunity to tell Lockard that she smelled good and
grabbed her hair. Id. Lockard immediately reported that
conduct to her manager and again said she did not want to
wait on the pair. Id. The manager directed: “You wait on
them. You were hired to be a waitress. You waitress.” Id.Lockard returned to the customers and one of them pulled her
hair, grabbed her breast, and put his mouth on her breast. Id.A jury found that Lockard established a hostile work
environment, id. at 1068, and the Tenth Circuit affirmed the
district court’s denial of the employer’s motion for judgment
as a matter of law, id. at 1077. The Tenth Circuit reasoned
that the employer was liable for creating a hostile work
environment because the restaurant had notice of the
customers’ harassing conduct, yet ordered Lockard to
continue waiting on them. See id. at 1075 (emphasizing that
the manager “placed Ms. Lockard in an abusive and
potentially dangerous situation, although he clearly had both
the means and the authority to avoid doing so”). Rather than
taking immediate and effective corrective action like the
employer in Brooks, Lockard’s manager clearly conveyed
that Lockard was expected to tolerate the customers’ abuse.
See id.Other circuits have held employers liable on hostile work
environment claims, or have denied summary judgment to
employers on such claims, where the employer’s response to
known harassment has subjected the employee to further
harassment. See, e.g., Rodriguez-Hernandez v. Miranda-
FRIED V. WYNN LAW VEGAS 17
Velez, 132 F.3d 848, 854–55 (1st Cir. 1998) (holding a
reasonable jury could find a hostile work environment was
created when a supervisor refused to intervene after a firm
client made sexual advances toward an employee, and instead
“conditioned her future with the company on her responding
to the unwanted sexual demands of a customer”); Crist v.
Focus Homes, Inc., 122 F.3d 1107, 1111–12 (8th Cir. 1997)
(finding dispute of fact as to a hostile work environment
premised on sexual harassment where a care facility asked a
care provider, who had reported being sexually assaulted by
a resident, to subject herself to additional offensive touching
so management could observe the conduct); cf. Folkerson v.
Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997)
(explaining that “an employer may be held liable for sexual
harassment on the part of a private individual . . . where the
employer either ratifies or acquiesces in the harassment by
not taking immediate and/or corrective action when it knew
or should have known of the conduct”).
Consistent with this case law, Barajas’s response to
Fried’s report that a customer had sexually propositioned him
should have prevented entry of summary judgment in Wynn’s
favor. Barajas not only failed to take immediate corrective
action, she directed Fried to return to the customer and
complete his pedicure. Her response to Fried’s report (“just
go do it and get it over with”), was akin to the manager’s
response in Lockard, 162 F.3d at 1067 (“You were hired to be
a waitress. You waitress.”). Barajas’s direction discounted
and effectively condoned the customer’s sexual harassment
and, as was the case in Lockard, went a step further by
conveying that Fried was expected to tolerate the customer’s
harassment as part of his job.
18 FRIED V. WYNN LAW VEGAS
Wynn argues that the facts of this case do not rise to the
level of creating a hostile work environment, but because the
focus is on Barajas’s reaction, we have no trouble concluding
that reasonable jurists could disagree with Wynn on this
point. Fried’s admissible evidence clearly satisfied the
subjective component of the hostile work environment claim
because Fried described feeling “absolutely horrible” and
“uncomfortable” while performing the pedicure. As for the
objective component, Fried testified that it took
approximately twenty minutes to complete the pedicure after
the customer explicitly sexually propositioned him and it is
clear he was subjected to extended personal contact with the
customer during the time it took to complete the service. It
also appears the customer continued to harass Fried after he
returned to complete the pedicure.4 Reasonable jurors could
decide that Fried’s manager condoned the customer’s conduct
and conveyed that sexual harassment would be tolerated in
the salon because she took no action to stop it—such as
requiring the customer to leave the premises immediately. To
the contrary, Barajas directed Fried to re-subject himself to
the harasser for an extended period of time. See Christian v.
Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020) (holding we
consider “all the circumstances,” including whether the
discriminatory conduct was “physically threatening or
humiliating” (quoting Davis, 520 F.3d at 1095)). Under our
precedent, the district court erred by ruling on summary
judgment that Barajas’s response to Fried’s report of the
customer’s harassment was insufficient as a matter of law to
create a hostile work environment.
4
Fried testified that he reported the customer’s proposition
“immediately”; that Barajas directed him to complete the service; and that,
in all, the customer made approximately five or six sexually inappropriate
statements during the pedicure.
FRIED V. WYNN LAW VEGAS 19
C
Finally, Fried argues that his coworkers’ insensitive
breakroom commentary that he should take the customer’s
sexual proposition as a compliment and that Fried had
welcomed the customer’s sexual advance, contributed to the
salon’s hostile work environment. The district court ruled
these comments were insufficiently severe or pervasive to
support Fried’s claim. But in light of our ruling that
Barajas’s response to Fried’s report of the customer’s sexual
proposition could be sufficient on its own to create a hostile
work environment, we reverse the district court’s ruling on
these related breakroom remarks. See Christian, 984 F.3d
at 809–10 (explaining the cumulative effect of conduct must
be considered).
IV
Fried failed to establish that his manager’s suggestion that
he work in another industry and his coworker’s suggestion
that he should wear a wig created a hostile work environment.
But a reasonable factfinder could conclude that the manager’s
response to Fried’s report of a customer’s overt sexual
proposition subjected Fried to a hostile work environment.
We therefore reverse the district court’s order granting
summary judgment in favor of Wynn on Fried’s hostile work
environment claim. On remand, the district court shall
reconsider the cumulative effect of the related comments by
Fried’s coworkers that he should take the customer’s sexual
proposition as a compliment or that he welcomed it.
REVERSED and REMANDED.